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Simpson Grierson Partners Shan Wilson and Sally McKechnie and Senior Solicitor Rachael Judge discuss the Harmful Digital Communications Act which is relevant to schools and other educational institutions, particularly in the context of Cyber Bullying.
The authors recommend checking policies and procedures to ensure expectations of proper behaviour are clear, as well as the consequences of breaching these expectations, if your organisation hosts or controls a website where people can post content, or an electronic communication service or social media page.
To hear more about this topic, Shan Wilson will deliver a seminar presentation on, Student Bullying and Discrimination Legalities Guidance Counsellors Need to Know at the Law for School Guidance Counsellors Conference on 12 June, where Simpson Grierson Senior Solicitor Alex Winsley will also be among the presenters.
What does this mean for employers?
The Harmful Digital Communications Act has important implications for all employers who host or control a website or any medium for electronic communication. The Act provides for offences for sending, posting, publishing, disseminating or communicating in any way a ‘digital communication’ with intent to cause harm to an individual. A ‘digital communication’ includes anything that is communicated electronically, such as emails, texts, pictures, videos, instant messaging, and posts on social media. The mechanism in the Act that allows complaints to be made came into force on 21 November 2016.
Any entity that has control over a website, online application or electronic communication system is included within the definition of an “online content host” (OCH). Many employers will be captured by this. If your employees send, post, publish, disseminate or communicate a digital communication with intent to cause harm to another employee or even a member of the public, using your social media page, instant messaging service, intranet, or internal email service, there may be serious ramifications for both the employees and your organisation.
The Act does not provide for any offences for an employer where they are an OCH. However, liability could still arise under existing law, and unless properly protected (discussed below) an OCH might be exposed to various claims, including:
- republishing defamatory material;
- breach of privacy; and/or
- breach of the Human Rights Act
“Safe harbour” process provides some protection from liability
OCHs will be protected from civil and criminal liability only if they follow the Act’s “safe harbour” process for “taking down” or “disabling” offending content. This process first involves notifying the author of a complaint. If the author cannot be found, does not respond or consents to removal, the material must be taken down. But, if the author validly disputes the complaint, the material must be left up, and the complainant advised. Periods of 48 hours apply to each part of the process.
It is not clear how an employer must “take down” or “disable” offending content where this has been sent via email or instant messaging, so we will look out for new developments in this area. In any event, employers are unlikely to be liable as an OCH for all harmful digital communications by its employees, simply because they used their employer’s equipment to post harmful material.
Review policies and procedures around employees posting content
However, if your organisation hosts or controls a website where people can post content, or an electronic communication service or social media page, we recommend you carefully review your policies and procedures to ensure it is made clear what the expectations of proper behaviour are, and what the consequences of a breach may be.
Further, where you are investigating potential misuse of your company email/instant messages systems or employees’ breaches of social media (even outside of the workplace), you need to bear in mind that the behaviour in question may be a breach of not only your policies, but also may be criminal behaviour under the Act.
Visit the Consumer Protection website for more details about the Harmful Digital Communications Act.
Please contact the authors if you have any questions or queries arising from this article or legislation, or would like help updating your policies and procedures.
Partner Shan Wilson is in Simpson Grierson’s employment law group. She advises on all employment relations issues in the workplace. She has particular expertise in union-related issues, alongside a related practice advising schools on education law issues. Shan has been practicing in the employment law area now for over 25 years. Shan has particular expertise in union-related issues – having assisted clients at the bargaining table or providing strategic advice behind the scenes. She has extensive experience in dealing with industrial issues, including test case issues before the Employment Court and Court of Appeal. Shan’s work experience includes time at one of London’s leading law firms, Allen & Overy. This enabled Shan to gain high-level experience in employment law issues across different jurisdictions. Shan has also built expertise in the education sector. Her knowledge and experience in this sector is not just in assisting schools with staff issues, it stretches wider to advise school boards on governance issues, student discipline matters, and she is well informed on all manner of issues arising from the Education Act. Shan sits on the boards of both a primary and secondary school. Contact Shan at shan.wilson@simpsongrierson.com or connect via LinkedIn
Partner Sally McKechnie is a leading public law and regulatory litigator and leads Simpson Grierson’s Wellington-based government and public law practice. Sally provides advice and representation on regulatory and statutory compliance, administrative decision making and processes, statutory interpretation, policy development and law reform. Sally’s approach is informed by her experience as a litigator. She is an experienced public law advocate, with considerable trial and appellate experience. Sally has appeared regularly in the High Court and Court of Appeal. Sally has particular expertise in regulatory compliance in the primary sector, education, health and medico-legal, privacy and official information. Sally joined the firm from Crown Law in May 2017. As Crown Counsel, she advised Ministers and senior officials on their public, regulatory and administrative law obligations. Sally was a Rhodes Scholar at Oxford University and began her legal career at another major New Zealand law firm. Contact Sally at sally.mckechnie@simpsongrierson.com
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Rachael Judge is a Senior Solicitor at Simpson Grierson. Contact Rachael at rachael.judge@simpsongrierson.com or connect via LinkedIn
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